Citation Nr: 0519844
Decision Date: 07/21/05 Archive Date: 08/03/05
DOCKET NO. 04-13 068 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for lymphoma, claimed
as due to radiation exposure.
2. Entitlement to an increased disability rating for
service-connected tinnitus, currently evaluated as 10 percent
disabling.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
S. Bush, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1948 to August
1949 and from September 1950 to December 1951.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri. A February 2003 rating decision denied
the veteran's claim for entitlement to service connection for
lymphoma, and a January 2004 rating decision denied an
increased disability rating for service-connected tinnitus.
In July 2005, a motion to advance this case on the Board's
docket was granted.
See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900
(2004).
The tinnitus claim
The Board regrets that it is unable to adjudicate the issue
of entitlement to an increased disability rating for service-
connected tinnitus at this time. The United States Court of
Appeals for Veterans Claims (the Court) recently issued a
decision in Smith v. Nicholson, No. 01-623 (U.S. Vet. App.
April 5, 2005), that reversed a decision of the Board which
concluded that no more than a single 10 percent disability
evaluation could be provided for tinnitus, whether perceived
as bilateral or unilateral, under prior regulations. VA
disagrees with the Court's decision in Smith and is seeking
to have that decision appealed to the United States Court of
Appeals for the Federal Circuit. To avoid burdens on the
adjudication system, delays in the adjudication of other
claims, and unnecessary expenditure of resources through
remand or final adjudication of claims based on court
precedent that may ultimately be overturned on appeal, the
Secretary of Veterans Affairs has imposed a stay at the Board
on the adjudication of tinnitus claims affected by Smith.
The specific claims affected by the stay include (1) all
claims in which a claim for compensation for tinnitus was
filed prior to June 13, 2003, and a disability rating for
tinnitus of greater than 10 percent is sought; and (2) all
claims in which a claim for service connection for tinnitus
filed prior to June 10, 1999, was denied on the basis that
the veterans' tinnitus was not "persistent" for purposes of
38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. In this case,
the veteran filed a claim for an increased disability rating
for service-connected tinnitus in January 2003, thereby
making the claim subject to the stay under the first
criteria.
Accordingly, Board action on the tinnitus issue is stayed,
and no decision will be rendered at this time. Once a final
decision is reached on appeal in the Smith case, the
adjudication of any tinnitus cases that have been stayed,
including this case, will be resumed.
The issue of entitlement to service connection for lymphoma,
claimed as due to exposure to radiation, is REMANDED to the
RO via the Appeals Management Center (AMC) in Washington, DC.
VA will notify the veteran if further action is required on
his part.
REMAND
Service connection may be granted for certain diseases on a
presumptive basis in radiation-exposed veterans under 38
U.S.C.A. § 1112(c) (West 2002) and 38 C.F.R. § 3.309(d)
(2004). The presumptive period for exposure to radiation for
the United States occupation of Hiroshima or Nagasaki, Japan
is between August 6, 1945 and July 1, 1946. See 38 C.F.R.
§ 3.309 (d)(3)(ii)(B) (2004).
The veteran contends that in 1950-51 he visited Hiroshima and
was exposed to radiation that ultimately led to his
development of lymphoma. The veteran's claim of exposure to
radiation in 1950 is several years beyond the above-mentioned
statutory presumptive period for exposure to radiation. The
veteran is therefore not considered to be a "radiation-
exposed veteran" as that term is defined by regulation. See
38 C.F.R. §§ 3.309(d)(3)(i) & (ii).
However, if a veteran is shown to have a radiogenic disease,
as defined by 38 C.F.R. § 3.311 (2004), the procedural
advantages prescribed in that regulation may be used in
developing and adjudicating a service connection based on
radiation exposure. The veteran's non-Hodgkin's lymphoma is
a radiogenic disease under 38 C.F.R. § 3.311. Pertinent to
this claim, 38 C.F.R. § 3.311 provides that when it is
contended that a radiogenic disease is a result of exposure
to ionizing radiation in service, an assessment will be made
as to the size and nature of the radiation dose or doses and
that a request will be made for available records and that
all such records will be forwarded to the Under Secretary for
Health, who will be responsible for preparation of a dose
estimate. See 38 C.F.R. § 3.311(a).
In short, under 38 C.F.R. § 3.311 all that is required for a
dose assessment is the presence of a radiogenic disease and a
contention that such disease is related to radiation exposure
during service. Both conditions have been met.
The Board is therefore remanding the veteran's service
connection claim to fully comply with the provisions of the
regulation.
The veteran's service personnel records, which are not of
record and can verify his presence in Hiroshima in 1950,
should be obtained.
With respect to the dose assessment, development on remand
should also ensure that all due consideration be accorded to
the May 2003 report of the National Research Counsel (NRC) of
the National Academies titled, "A Review of the Dose
Reconstruction Program of the Defense Threat Reduction
Agency." The NRC's report calls into substantial question
the accuracy of DNA dose reconstructions, describing them as
"highly uncertain," as the "degree of underestimation of
upper bounds is substantial in many cases," and that as a
result, "veterans are not always given the benefit of the
doubt in developing exposure scenarios and assessing film-
badge data."
In a recent non-precedential decision which also involved a
claim based on exposure to ionizing radiation, a judge for
the Court instructed the Board on remand to address the
concerns raised by the NRC's report of May 2003. See Russell
v. Principi, No. 02-1562 (November 4, 2003). Single judge
decisions of the Court have no precedential weight, but these
decisions may be cited "for any persuasiveness or reasoning
[they] contain." See Bethea v. Derwinski, 2 Vet. App. 252,
254 (1992). Accordingly, as this case is being remanded to
ensure compliance with 38 C.F.R. § 3.311, further development
and readjudication of the veteran's ionizing radiation claim
must be undertaken with consideration of the matters raised
in the NRC report of May 2003 regarding dose assessments.
Accordingly, this case is REMANDED to the Veterans Benefits
Administration (VBA) for the following actions:
1. VBA should obtain any available
service personnel records and
associate such with the veteran's VA
claims folder.
2. VBA should then forward the case
to the Under Secretary for Health in
order to obtain a radiation dose
assessment as required under 38 C.F.R.
§ 3.311(a). Thereafter, VBA should
review the record and ensure that all
actions have been conducted and
completed in full, including all
additional development required under
38 C.F.R. § 3.311 following obtaining
radiation dose information.
Furthermore, as alluded to above, the
development on remand should include
consideration of the concerns
regarding dose assessments raised in
the NRC's report of May 2003.
3. VBA should then readjudicate the
issue on appeal. If the decision on
the claim remains unfavorable to the
veteran, a supplemental statement of
the case should be prepared and an
appropriate period of time should be
allowed for response. Thereafter, the
case should be returned to the Board,
if otherwise in order.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).